Dec 11, 2022

INSIGHT KANSAS: Dealing with disagreement, in law and life

Posted Dec 11, 2022 11:15 AM
<i>Dr. Russell Arben Fox teaches politics in Wichita.</i>
Dr. Russell Arben Fox teaches politics in Wichita.

Kansas Supreme Court Justice Caleb Stegall is in the news for a letter he wrote to KU Law, his alma mater, stating that he would no longer serve as an adjunct professor there. I confess, this surprised me.

Two years ago, Stegall did another surprising thing. He publicly rebuked members of his own party for voting down Carl Folsom, whom Governor Laura Kelly had nominated to the Kansas Court of Appeals. It was, of course, just a partisan vote, but GOP leaders claimed justification because Folsom had gone to court on behalf of people charged with some pretty horrible crimes, as was his job as a public defender, and that was used to smear him. Stegall responded by calling out those Republicans for failing to honor “the ideal of a public-spirited, deliberative, and reasoned engagement with others.”

Now Stegall and I are not close friends. Still, we’ve interacted and argued with each other for close to 20 years; we’ve come to know and, I think, like each other. My philosophical understanding of that ideal which he articulated back in 2020 isn’t exactly the same as his, but we’ve disagreed plenty before, and either way, I truly admire how he has adhered to it.

So when Stegall faulted KU Law for “an institutional failure to cultivate the norms, habits, and skills necessary to the task of lawyering”—specifically in reference to what he called the “bullying” response of certain members of the KU Law community when a conservative student organization invited a speaker from the controversial Alliance Defending Freedom to campus—I took his words seriously.

On the one hand, Stegall is plainly correct that the ADF and its ideas—which tend to frame almost any advance in the rights of gay, lesbian, and transgender individuals as an attack on religious liberty—have, like it or not, long been present in Kansas’s legal environment. Consequently, discouraging students from confronting those ideas—even when, as Stegall admits, they may seem “existentially threatening”—is probably not a good way to prepare Kansas’s future lawyers. Quoting Professor Richard Levy, a longtime KU Law faculty member, Stegall rightly makes the point that “if lawyers cannot talk to each other about difficult subjects on which they disagree, how can we expect anyone too?”

But on the other hand, I have a hard time squaring Stegall’s previous rebuke of those who prefer accusations to “reasoned engagement” with his own decision. After all, in our present moment, with polarizing opinions taking advantage of the ideological and technological breakdown of long-accepted norms all around us, remaining present to so as to engage ideas which one disagrees with directly seems imperative. Shouldn’t that include disagreements over how other people respond to disagreements as well?

Last year, Stegall gave a wonderful address that addressed how the law can never be entirely disentangled from arguments over the ethical concerns and procedural outcomes which surround it. Quoting an old parable, he concluded that, in the midst of these quandaries, “heaven smiles mischievously down on us”—then added, “we can smile back, if we have the stomach for it.”

Every person’s stomach for dealing with disagreement is going to be different, and perhaps sometimes withdrawing in the face of a disagreement may be the most productive way of engaging with it. Nobody can entirely refuse to ever draw lines in the sand, and hence I respect Stegall’s reasoning for drawing his line here. But I also must admit: it doesn’t seem consistent with his own best arguments to me. No doubt, this will be something we can continue to disagree about as well.

Dr. Russell Arben Fox teaches politics in Wichita.